435 N.E.2d 1011 (Ind.App. 3 Dist. 1982), 3-781A186, Lystarczyk v. Smits

Docket Nº3-781A186.
Citation435 N.E.2d 1011
Party NameJohn LYSTARCZYK, Erma Lystarczyk, Appellants-Defendants, v. Vernon C. SMITS, d/b/a Able Realty, Plaintiff-Appellee.
Case DateMay 26, 1982
CourtCourt of Appeals of Indiana

Page 1011

435 N.E.2d 1011 (Ind.App. 3 Dist. 1982)

John LYSTARCZYK, Erma Lystarczyk, Appellants-Defendants,

v.

Vernon C. SMITS, d/b/a Able Realty, Plaintiff-Appellee.

No. 3-781A186.

Court of Appeals of Indiana, Third District.

May 26, 1982

Page 1012

W. Russell Sanford, Plodowski & Sanford, South Bend, for appellants-defendants.

Charles A. Asher, South Bend, for plaintiff-appellee.

STATON, Judge.

Vernon C. Smits doing business as Able Realty and John and Erma Lystarczyk 1 had entered into a contract whereby Smits was to build Lystarczyk a house as close as possible to a model home Smits had built and Lystarczyk was to pay Smits $34,600. From a jury trial, Lystarczyk appeals the award to Smits of compensatory damages, punitive damages, and attorney fees for Lystarczyk's breach of the contract. Lystarczyk raises the following issues for our consideration: 2

(1) Are the compensatory damages excessive and contrary to law?

(2) Was it proper to award prejudgment interest and was the prejudgment interest properly calculated?

Page 1013

(3) Is the award of punitive damages and attorney fees supported by sufficient evidence?

(4) Did the trial court err by refusing to give a tendered instruction?

Smits raises the issue of whether he should be awarded by this Court ten percent damages because Lystarczyk brought this appeal. 3

We affirm in part, reverse and remand in part, and deny the assessment of appeal damages.

I.

Compensatory Damages

In his complaint and at trial, Smits alleged that (1) Lystarczyk had paid only $24,000.00 of the $34,600.00 contracted price for the construction of the house, (2) Lystarczyk delayed construction and added to the expense of construction of the house by harassing workers and limiting their access to the construction site, (3) Lystarczyk had not paid for "extras" added to the house that Lystarczyk had requested in addition to what was in the contract, and (4) Lystarczyk had done these things in a malicious, fraudulent, willful and wanton, reckless, oppressive, and outrageous manner in wholesale disregard of the dire consequences to Smits. The jury awarded $13,450.00 compensatory damages, $3,000.00 attorney fees, and $1,000.00 punitive damages.

On appeal, Lystarczyk argues that the compensatory damages are excessive and contrary to law because they are not supported by sufficient evidence of probative value. Lystarczyk recognizes the standard set forth in Palmer v. Decker (1970), 253 Ind. 593, 255 N.E.2d 797, 798: in reviewing the evidence on appeal we look to the evidence most favorable to Smits to determine if there is substantial evidence of probative value or reasonable inferences therefrom to sustain the judgment of the trial court. We will reverse the judgment only if the evidence and reasonable inferences are undisputed and could only lead to a verdict contrary to that reached by the jury.

Lystarczyk argues that Smits admitted that several items of the house were in need of correction and that it would have cost $500.00 to $700.00 to make the corrections before Lystarczyk moved into the house. Lystarczyk argues that at least $500.00 should have been set off against the amount of compensatory damages awarded. We disagree.

The testimony to which Lystarczyk refers is as follows:

"Q. Now I know there is a dispute here as to who caused certain things not to be finished, but putting that aside let me ask you to give your best estimate of what today it would cost for you to take a crew or anyone to go back and pick a crew and go back and finish or fix these items, any drywall cracks in that house, any trim replacement, any efflorescence, any problems with any doors, interior or exterior, any caulking in any bathrooms and any metal staging? (sic )

"A. Well, I think really you should divide this up. Any problem with the drywalling would be the drywaller's responsibility. I shouldn't have to pay for that.

"Q. I understand, but if you had to go back today and it wasn't the subcontractor's responsibility what would it cost today to fix that?

"A. I would say between eight and thirteen, fourteen-hundred-dollars.

"Q. Now, what would it cost you to fix those items had they been brought to your attention before Mr. and Mrs. Lystarczyk moved in?

Page 1014

"A. Probably about five.

"Q. About five-dollars? (sic )

"A. Five to seven-hundred.

"Q. These subcontractors would have been obligated to come back and fix these items?

"A. Yes.

"Q. And you stood ready to call them back?

"A. That's right." (Emphasis added.)

This testimony could reasonably be interpreted to state that if Smits did all the repairs before Lystarczyk moved into the house, including work that the subcontractors really should do, it would have cost $500 to $800.00. Smits did not testify to a specific amount that it would cost him to make repairs in addition to the work the subcontractors were obligated to perform. We can not agree with Lystarczyk that the evidence before the trial court proves that Smits was put in a better position than he would have been by $500.00.

Lystarczyk also argues that $50.00 should have been set off against the damages awarded because Smits admitted in his opening statement that Lystarczyk had legitimately expended this amount to repair his garage door. Smits' attorney stated the following in opening argument:

"Now, the Lystarczyks have claimed that these defects have made the home-have reduced the market value of the home and that they are going to cost an extreme amount of money to remedy. However, it should be noted in the record, and the evidence will show, that to date they in fact have paid-have spent two-hundred-and-fifty-dollars to remedy these extremely terrible defects. Two-hundred of that amount was unnecessary. So, in short, they have spent fifty-dollars on the total of all these defects."

Indiana has not previously stated if and when an attorney's remarks during opening statement are binding upon the client as an admission of fact which relieves the opposing party of the duty to present evidence of that fact. After considering the reasoning of other jurisdictions, we conclude that an attorney can make an admission during opening statement that is binding upon his client and relieves the opposing party of the duty to present evidence on that issue. McLhinney v. Landsdell Corp. of Maryland (1969), 254 Md. 7, 254 A.2d 177, 180; Erwin v. Thomas (1973), 267 Or. 311, 516 P.2d...

To continue reading

Request your trial
29 practice notes
  • 436 N.E.2d 899 (Ind.App. 3 Dist. 1982), 3-1281A307, Leibowitz v. Moore
    • United States
    • Indiana Court of Appeals of Indiana
    • June 29, 1982
    ...of a given case just as are questions concerning the reasonableness of other professional fees. Lystarczyk v. Smits (1982), Ind.App., 435 N.E.2d 1011. Admittedly, our courts have sometimes held that the trial judge is a qualified expert and as such may "judicially notice" the amou......
  • 122 B.R. 712 (Bkrtcy.N.D.Ind. 1990), Oct. 4, Matter of 1989, McGovern
    • United States
    • Federal Cases United States Bankruptcy Courts Seventh Circuit
    • January 26, 1990
    ...fact of liability. The assessment of damages, however, does not always require the court or the jury to do so. See Lystarczyk v. Smits, 435 N.E.2d 1011, 1015 (Ind.App.1982); Indiana Industries, Inc. v. Wedge Products, 430 N.E.2d 419, 427...
  • 217 P.3d 1262 (Colo.App.Div. 3 2009), 07CA2081, D.R. Horton, Inc.-Denver v. Bischof & Coffman Construction, LLC
    • United States
    • Colorado Court of Appeals of Colorado Third Division
    • July 9, 2009
    ...it is generally presumed that counsel did not intend to make a judicial admission during his or her statement. See Lystarczyk v. Smits, 435 N.E.2d 1011, 1014 (Ind.Ct.App.1982); Baxter v. Gannaway, 113 N.M. 45, 50, 822 P.2d 1128, 1133 (N.M.Ct.App.1991). In Walter v. Wal-Mart Stores, Inc., 74......
  • 452 N.E.2d 989 (Ind.App. 2 Dist. 1983), 2-581A150, Briggs v. Clinton County Bank & Trust Co. of Frankfort, Ind.
    • United States
    • Indiana Court of Appeals of Indiana
    • August 9, 1983
    ...1379. See also Sears, Roebuck & Co. v. State (1967) 248 Ind. 169, 225 N.E.2d 175; Lystarczyk v. Smits (3d Dist.1982) Ind.App., 435 N.E.2d 1011; U.S. Aircraft Financing, Inc. v. Jankovich (4th Dist.1980) Ind.App., 407 N.E.2d 287. Attorney fees cannot be awarded in a void. In the absence ......
  • Request a trial to view additional results
29 cases
  • 436 N.E.2d 899 (Ind.App. 3 Dist. 1982), 3-1281A307, Leibowitz v. Moore
    • United States
    • Indiana Court of Appeals of Indiana
    • June 29, 1982
    ...of a given case just as are questions concerning the reasonableness of other professional fees. Lystarczyk v. Smits (1982), Ind.App., 435 N.E.2d 1011. Admittedly, our courts have sometimes held that the trial judge is a qualified expert and as such may "judicially notice" the amou......
  • 122 B.R. 712 (Bkrtcy.N.D.Ind. 1990), Oct. 4, Matter of 1989, McGovern
    • United States
    • Federal Cases United States Bankruptcy Courts Seventh Circuit
    • January 26, 1990
    ...fact of liability. The assessment of damages, however, does not always require the court or the jury to do so. See Lystarczyk v. Smits, 435 N.E.2d 1011, 1015 (Ind.App.1982); Indiana Industries, Inc. v. Wedge Products, 430 N.E.2d 419, 427...
  • 217 P.3d 1262 (Colo.App.Div. 3 2009), 07CA2081, D.R. Horton, Inc.-Denver v. Bischof & Coffman Construction, LLC
    • United States
    • Colorado Court of Appeals of Colorado Third Division
    • July 9, 2009
    ...it is generally presumed that counsel did not intend to make a judicial admission during his or her statement. See Lystarczyk v. Smits, 435 N.E.2d 1011, 1014 (Ind.Ct.App.1982); Baxter v. Gannaway, 113 N.M. 45, 50, 822 P.2d 1128, 1133 (N.M.Ct.App.1991). In Walter v. Wal-Mart Stores, Inc., 74......
  • 452 N.E.2d 989 (Ind.App. 2 Dist. 1983), 2-581A150, Briggs v. Clinton County Bank & Trust Co. of Frankfort, Ind.
    • United States
    • Indiana Court of Appeals of Indiana
    • August 9, 1983
    ...1379. See also Sears, Roebuck & Co. v. State (1967) 248 Ind. 169, 225 N.E.2d 175; Lystarczyk v. Smits (3d Dist.1982) Ind.App., 435 N.E.2d 1011; U.S. Aircraft Financing, Inc. v. Jankovich (4th Dist.1980) Ind.App., 407 N.E.2d 287. Attorney fees cannot be awarded in a void. In the absence ......
  • Request a trial to view additional results